The coronavirus is having a significant impact on many public services and of course families. This includes the operation of the family law system and its associated courts.
The Family Law Section of the Law Council of Australia has recently published a Top 10 guide for separated parents during these testing times. Please see article below.
– Jennifer Blissett
Separated parents experience both the joys and stressors of parenting. But additional pressures and stresses such as those associated with the Covid19 Pandemic can be hard to accommodate and provoke anxiety in parent and child alike.
The Family Law Section has compiled these TOP TEN suggestions to help separated parents navigate this difficult time.
1. Stay healthy
Model best practice habits (for kids, family and friends) to minimise the risk of spread of the virus – frequent and thorough hand washing and responsible social distancing. Simple routines become habit forming.
Guidelines are available at https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others
Let the other parent know that you (and all members of the household) are following these guidelines – we all worry that others are not taking things as seriously as we should and assurances bring peace of mind and good will. As with all co-parenting, consistent messaging across households is ideal.
2. Be present and considered
This is a serious health challenge. Children will have heard much through their schools, networks and media.
Children are not necessarily able to accurately process all of this information in a way that allows for peace of mind. Older children whose studies and major social events such as school formals and celebrations have been cancelled may be unsettled and anxious. Younger children can readily become confused and scared by perceived magnitudes of risk.
3. Meeting your obligations
If your parenting matters are regulated by court order or agreement, you must still meet your obligations under those terms unless a reasonable excuse applies. If arrangements become unclear or cannot be met (eg: quarantine, travel restrictions or because schools close) use common sense to find solutions to challenges. If you anticipate a change, give the other parent plenty of notice and an explanation so they also have time to adjust.
4. Adapt
If schools are closed and changeover normally occurred after and at school or sporting events, nominate or start planning for another neutral and public location that will be suitable – and where social distancing practices can be maintained.
Sporting activities or activities parents planned to do with children during school holidays or weekends are unlikely to now be available. Think about whether you will be required to work from home and whether that is feasible when children are in your care.
If time arrangements with the other parent or important people cannot occur, find other ways to try to maintain the connection – including digital communications.
5. Be open
Try to be on the same page with the other parent about the things you will each do in your respective households (and in your wider communities) to limit exposure to the virus and to shield the children.
If a child is showing any symptoms, that information should be shared immediately with the other parent, and an agreed response implemented. Know what your own self-isolation plan will be so that you are able to share that with the other parent if necessary.
Try to engage openly and honestly with the other parent about your worries and if there has been a risk of exposure to the virus, be honest about that (at which point mandated responses will be required in any event, which will include isolation or quarantine and may include testing).
6. Be mutual
Think about how you would like the other parent to engage with you about these issues, and model that engagement. Make accommodations to the other parent if they are possible and good for the children – and expect such accommodations in return. If time can’t occur at one point, suggest it occur at another point.
All parents and children will benefit from some mutually agreed give and take.
7. Be compassionate
Very few people can apply certainty to their planning in times of stress and may respond to data about risk in ways that may seem disproportionate to you – but understand that we do not have a playbook for how to plan for or respond to this crisis. Being calm in times of high stress is hard – but you are more likely to reduce the conflict if both are making the best effort possible.
8. Be solution focussed
At this time, more than ever, the need for parents and other adults concerned with the care of children to find compromise in the interests of children, is absolutely clear. Courts will increasingly have limited availability; dispute resolution services may be hard to access and common sense coupled with respectful engagement may be the surest path.
It’s an opportunity to find new ways to solve old problems.
9. Help out to the extent you can
People may lose jobs or experience a reduction in their income. This may impact what can be paid by way of child support or the contribution to other expenses.
Try to be understanding of the situation the other parent is in – financial worry will probably exist in both households. The message and legacy of these days should be, as far as possible, that both parents and households worked together to find a solution that was as good as possible for the children.
10. Be patient and positive
This situation is not going to resolve overnight. Changes to the way we work, socialise, communicate and parent will come in the next few weeks and months.
Make a conscious effort to embrace the good and joyful moments in each day, stay connected by phone or social media to friends or family who can support you and remember that you are the beacon for your children at this time.
The Family Law Act in Australia provides where parties to a marriage are granted a “divorce order”, an application to divide their assets must be made within 12 months of the “divorce order”, unless, the parties otherwise consent to an order or leave of the Court is granted.
However, what is the situation where parties are divorced overseas, 12 months has lapsed since their divorce and they are still to divide their jointly owned Australian property?
This was the dilemma that faced the trial judge in a recent case of Anderson & McIntosh (2013). The short facts of this case were, the parties married in 1988 in Queensland. They moved to Argentina in 2006. The parties during the course of their marriage had purchased property both in Australia and in Argentina. Their marriage irretrievably broke down. In 2010 the parties divorced in Argentina. The parties reached an agreement as to how their property in Argentina was to be divided but no agreement nor orders were made in relation to the property owned in Australia. In 2012, the wife made an application to the Family Court in Australia to divide the property the parties owned in Australia. This was outside the period of 12 months and she did not obtain leave of the Court to make this application. The husband sought that the wife’s application be dismissed as the time limitation had lapsed and prior leave of the Court was required prior to the wife making an application for the division of property.
The trial judge determined that leave of the Court was not required in these circumstances as the judge held the time limitation does not apply to an overseas divorce and that no part of the Australian legislation indicated the term inferred in the “divorce order” should apply to a divorce granted overseas.
The husband appealed to the Full Court of the Family Court.
The Full Court of the Family Court sitting at Brisbane held that there was no error at law by the trial judge and that the wife’s original application be granted.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
After a long marriage Mr and Mrs Pratt separated, following which property settlement and spousal maintenance proceedings were listed for a three day hearing.
At the commencement of the hearing, the wife sought an adjournment for a significant period, being two years. The trial judge ordered the proceedings be adjourned for at least three years. Also, the husband’s application for a reduction in spousal maintenance (he was paying $6,500.00 per month) was dismissed.
The application for a lengthy adjournment was provided for under Section 70(5) of the Family Law Act. In general terms,
this section of the Act provides that if there is likely to be a significant change in the financial circumstances of the parties to the marriage and having regard for the time when a change is likely to take place, it is reasonable to adjourn proceedings. Also if the
significant change in the financial circumstances is more likely to do justice between the parties than an order that the court could make immediately with respect the division of property.
The facts of the matter were as follows:
The parties owned a large landholding in the Northern Territory used for cattle grazing. In 2010 the properties were valued at $26 million. 11 months later a different valuer said the property was worth $16.4 million. It was common ground that the large Northern Territory cattle property had fallen in value. There was a loan facility from the parties’ bank for $34 million and interest at 9.52% was accruing. As at October 2011 the interest would have amounted to about $3 million.
The wife submitted that “the cattle area valued” could be expected to increase over a two year time frame when the live cattle market would ease or new markets would open. On the other hand, it was argued for the husband it was unknown how long it would take for the market to adapt to change.
The trial judge concluded that given the parlous state of the parties’ finances, he was not satisfied that within two years an increased value was feasible, but hoped an increase would occur over three years, when the parties would be able to get something for their endeavours. Thus the trial judge exercised his discretion and adjourned for a period of three years.
On appeal, the Full Court found against such lengthy adjournment. The Court held that the section required an affirmative opinion that there was likely to be a significant change in financial circumstances that made it reasonable to adjourn the proceedings. The Court accepted, that the expert evidence did no more than speculate an improvement in the market for rural properties if a number of events occurred, none of which was expressed as a certainty. The Full Court held that the hearing should proceed.
At Everingham Solomons we can assist you with all your family law matters including situations which involve complex issues because Helping You is Our Business.
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Under the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.
In the recent decision of Withall, Richardson and Powles [2013] which was before the Family Court in Western Australia, the judge was required to decide whether the children should reside with a parent or a person who was not a biological member of the children’s family. The mother, the father and another significant person in the children’s lives whom I will refer to as ” the intervernor ” presented their individual cases that “it was in the best interest of the children” that they live with only one of them. However, during the course of the proceedings the natural father did not press his application.
It is not practical to outline the facts of this matter, other than to say the parents were separated, each of the parents had suffered ill health, the parents had overindulged in drugs and alcohol and there was reference to child pornography being found
in one of the parents home. The mother sought an order that the children live with her, but the court declined to make such an order. The Court made an order that children live with “the intervernor.” Included in the judge’s findings “the intervernor ” was a person who was likely to promote the relationship of the children with both their mother and there father.
The Court found “the intervernor“ had the capacity to promote the emotional and intellectual needs of the children and was a person who had previously been responsible for parenting the children.
It is noteworthy that it was held that the children were 13, 12 and 11. These children wished to live with “the intervernor” The Court found significant weight should be given to the children’s wishes.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law, because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
The above song title written by Louis Jordan, of course, is used in a different context when the question is asked in a legal proceeding. From biblical times it is told that Solomon was required to decide the parentage of a child and to the present time, disputes continue over parentage.
Thankfully, science can, in many cases, put the question beyond dispute, following the advent of DNA testing.
When a parentage of a child is at issue under family law proceedings, the Court may require a “parenting testing procedure” to be carried out to help in determining the parentage. Such an order may be made as follows:
at the request of a party to the proceedings;
at the request of a party representing a child;
at the Court’s own initiative.
A Court will not order parenting testing merely because it has been requested to do so. The applicant must show an honest and reasonable belief that there is doubt as to paternity. The Court will objectively assess the circumstances giving rise to the applicant’s belief.
In the case of FR (1992) 15 FAMLR 533 it was held :
“…there must be an honest, bona fide, and reasonable belief as to the doubt (in relation to the parentage). An objective test is not to be applied that evidence in such an application is seldom, (if ever) sufficient to enable the Court to make an objective conclusion.”
Should a party refuse to comply with an Order for parenting testing, the Court may draw such inferences from the failure to undergo testing as appears just in the circumstances.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
Recently the Local Court Magistrate was required to rule on whether a couple whose Islamic marriage included a contract that the husband pay his wife a $50,000 “deferred dowry” if he left her was enforceable.
The short facts were that the parties had married under Islamic Law in 2004. The man divorced his wife under Islamic Law by telling her during an argument “you are divorced”. The magistrate upheld the contract between the parties and found the contract was enforceable. The decision was appealed to the Supreme Court of New South Wales on a number of grounds.
These included:
the Magistrate did not have the jurisdiction, as it was a matter involving “Sharia Law”;
the agreement was not properly executed pursuant to the New South Wales Property (Relationships) Act; and
a further ground of appeal was that the contract (being the delayed payment of a dowry of $50,000) should not be enforceable as it was contrary to public policy.
In effect, it was argued the agreement was of certain “servitude”. The requirement to pay $50,000 if the husband initiated separation or divorce was to compel the husband to remain married. Also, it was argued that the payment was a penalty clause and was, therefore, void for illegality.
All these arguments were rejected by the Supreme Court of New South Wales and the magistrate’s decision was upheld. The New South Wales Supreme Court went on to refer to decisions in other countries where such contracts were upheld.
Finally, the Supreme Court noted there was no Australian case law on this matter where cultural or religious tradition is raised and that this question and issue would be referred to both the Commonwealth and New South Wales Law Reform Commission for review.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
An application was made before the District Court of NSW in late 2011 to trace the name of the biological father with the name of a former lesbian partner of the birth mother.
This application was made by a former lesbian partner of the mother of a ten year old child. The former partner and the mother chose to have a child by artificial insemination. The mother and the former partner met the sperm donor via a newspaper advertisement. The mother was inseminated. A child was born thereafter. The sperm donor was registered on the child’s birth certificate. Indeed, the sperm donor had a close relationship with the child and contributed tens of thousands of dollars to the child’s welfare.
In 2008 NSW law was amended to permit two women whom had a child when in a relationship to have BOTH of their names placed on the Register of Births as parents of the child.
Because of this change to the law, the former lesbian partner sought to have her name replace the sperm donor’s name on the birth certificate. He opposed the application.
The Court held:-
Under the provisions of the Status of Children Act, the rebuttable presumption in the father’s favour, that he is a parent is displaced by the irrebuttable presumption that because the child was conceived through a fertilisation procedure he is presumed not to be the parent;
The clear words of the Births, Deaths & Marriages Registration Act shows only two people may be shown on the Register as the child’s parents.
The sperm donor (biological father) agreed that there was no contractual agreement prior to the birth that he would be on the Register when he agreed to donate the sperm.
Whilst there might be conflicting views within the community as to who should be registered as parents, the law is clear. The former partner was successful.
We have the experience and expertise to assist you with all your Family Law needs because Helping You is Our Business.
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Not only are parents morally obligated to support their children we should be aware that there is also an obligation for parents to maintain their children in a financial sense. Human nature being what it is, some parents, will not comply with their obligations to support their children. Indeed, failure of a parent to pay maintenance towards a child has been a ongoing social problem. Various Acts of Parliament have been enacted in an attempt to enforce maintenance payments with only a limited amount of success.
It is believed that arrears have become more readily recoverable since the creation of the Government instrumentality, the Child Support Agency (“CSA”).
For any number of reasons, parents defaulting in child support obligations may seek to travel outside Australia. In appropriate cases, Departure Prohibition Orders (“DPOs”) may be used to stop parents with outstanding child support arrears from leaving Australia. DPOs are an effective way to collect outstanding child support. In the year 2008-9 the CSA recovered around $5 million of overdue child support by using DPOs.
A DPO is an administrative order and does not need the endorsement of a Court. The power to issue such orders may be delegated to certain senior CSA officers.
Whilst it is not appropriate to set out all the provisions of such law, in an article such as this, certain features should be noted. The CSA can make a DPO when four conditions are satisfied:
the relevant person has a child support liability;
the relevant person has not made satisfactory arrangements to hold discharge to liability;
CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debt;
CSA believes it is desirable to make such an order to ensure that person does not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so.
Awareness of these provisions may assist parents in enforcing payment when a child support liability has not been paid.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law, because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
When couples separate they are often required to divide the assets and debts that have been accumulated during the course of their relationship. There are a number of ways this can be done. The couple can agree to divide their property without court intervention. Where the parties cannot agree on how to divide their assets or debt it is possible to apply to the court for orders as to how their property and debts should be divided.
When a case goes to court to determine a financial order, the court generally begins by determining the assets and liabilities of the parties. The court considers what direct financial contributions each person has made (such as wages), it considers indirect financial contributions (such as inheritances). The court also considers non financial contributions such as caring for children, domestic duties and also the respective age, health and ability to earn income is taken into account.
There are a number of broad principles that will be considered by a court when determining how an inheritance could be considered. Assets are not protected simply because they have been inherited by one party.
The court will look at when the inheritance was received and the stage of the relationship at the time of the inheritance. Generally, when an inheritance is received very late in the relationship or after separation the court will treat it as a contribution made by the spouse who received it, however, this is not always the case. The size of the inheritance in contrast to the other assets owned by the parties is also relevant.
When there are no substantial assets owned by the couple but there is an inheritance it is more likely the court will make an order for a property settlement from the inheritance, even if the inheritance was received after the date of separation.
This was illustrated in the case of Schirmer and Sharpe (2005). The facts were that the parties were married for 9 years. During the course of the marriage the parties had four children. The total net property at the time of separation was $9,000.00. At the time of the trial it was $833,833.00. The increase was mainly due to an inheritance the wife received three years after separation. The Trial Judge made an order which took into consideration the financial contribution made by the wife (being the inheritance) ordering the wife to receive 90% of the asset pool the husband to receive 10%. The husband appealed this decision but the Full Court dismissed the appeal and found that the Trial Judge to be correct.
When you are considering separating or have separated, you should seek legal advice. At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
The coronavirus is having a significant impact on many public services and of course families. This includes the operation of the family law system and its associated courts.